Magazine

What The New Court Will Look Like

November 21, 2004

With barely a pause for breath after his hard-fought Election Day victory, President George W. Bush is gearing up for his next big campaign: The fight for the future of the Supreme Court. In his second term, Bush could have the chance to replace as many as four of the nine justices on the nation's highest bench, including the ailing Chief Justice, William H. Rehnquist. No President since Richard M. Nixon has appointed four justices, and, like his, Bush's choices will shape the law and life of the nation for generations.

Court appointments didn't get much attention in the campaign. Yet Rehnquist's late-October announcement that he is undergoing treatment for thyroid cancer has thrust the issue to the fore of the Administration's agenda. Bush's appointments are certain to move the court firmly to the right. The President has vowed that his nominee will be "somebody who knows the difference between personal opinion and the strict interpretation of the law." In other words, someone a lot like Justice Antonin Scalia -- the nation's leading champion of a conservative legal philosophy that is gaining adherents on the federal bench.

Bush has said that Scalia and his ideological soul mate, Justice Clarence Thomas, are his favorites on the court. That is fueling speculation that one of them will be tapped to become Chief Justice when Rehnquist, who has been absent from arguments so far this term, retires. Yet several other names could make the President's short list. Jurists J. Michael Luttig and J. Harvie Wilkinson III, both of the Fourth Circuit Court of Appeals in Richmond, Va., are among the candidates Bush is rumored to like; Judge Samuel A. Alito Jr. of the Third Circuit Court in Newark, N.J., is running closely behind. All share an adherence, in some fashion, to Scalia's approach to jurisprudence. Indeed, Alito so closely emulates Scalia that he has earned the nickname "Scalito" among liberals.

Count on especially fierce opposition if Scalia is elevated to Chief Justice -- or if a Scalia disciple such as Alito is nominated to fill a vacancy. "Scalia is the far-right anchor of the court," says Nan Aron, president of the liberal umbrella group Alliance for Justice. "He is a leader in urging resumption of states' rights, the death penalty, and a ban on gay marriage." While other jurists, including Thomas, are just as conservative, Scalia combines intellectual firepower with persuasive charm. Just as important, the 68-year-old justice hews to a philosophical framework -- known as textualism -- that gives great weight to the written words of the Constitution and legislation. The doctrine's impact: It curbs the power of the judicial branch to create new rights or extend old ones in light of changing social circumstances. For many Democrats, that makes Scalia the embodiment of a dangerously conservative judicial movement that seeks to limit affirmative action, weaken environmental regulations, and curb civil liberties.

That's why both sides are girding for a huge fight. If Bush decides to elevate Scalia or Thomas to Chief Justice as well as name a new justice, he would trigger two confirmation battles in the closely divided Senate. Liberals say they fear having to fight two appointments at once, and conservatives fret that the fallout from such a pitched battle will damage Bush's chances on later appointments. Both sides may urge the President to minimize the firestorm by giving the gavel to an outsider.

"NUCLEAR OPTION"

With a 55-44-1 majority in the Senate, Republicans may try to defang Democrats' opposition to high court nominees. Senate Majority Leader Bill Frist (R-Tenn.) is considering a move to change Senate rules to bar a 40-senator minority from filibustering judicial appointments. If Frist follows through, Democrats vow to bring the chamber to a standstill, blocking even routine business. It's little wonder that Hill aides refer to the possible rule change as the "nuclear option."

Yet the focal point of the seething debate between Right and Left remains Scalia himself. A powerful writer and earthy wit who counts many liberal lawyers among his close friends, Scalia also is ego-driven, divisive, contemptuous of Washington's fixation on conflicts of interest, and prone to controversy. His poison pen -- dripping with unconcealed disdain for jurists who lack his intellectual consistency -- has limited his ability to bring his current colleagues around to his point of view. But that won't be a problem if Bush taps the growing ranks of like-minded judges to fill vacancies.

Scalia's doctrine: Judges who interpret the Constitution should rely on the document's actual words regardless of political or cultural concerns that have arisen since the 18th century. Scalia championed the movement in response to a decades-long trend toward a more pragmatic approach to jurisprudence in which judges take current social realities into account as they consider cases. This approach -- sometimes known as legal realism -- led to such landmark decisions as the Supreme Court's 1973 Roe v. Wade ruling, which struck down state prohibitions on abortion. The court's ruling was based on a right to privacy that Scalia rejects because it isn't explicitly spelled out in the Constitution. Scalia believes such decisions should be left to the legislature while judges stick to the written law. Any Scalia disciples Bush names to the high court can be expected to protect property rights, expand the freedom of commercial and political speech, oppose affirmative action, and curb the power of Congress.

But textualism doesn't always lead to conservative results. Scalia hews strictly to his philosophy, which occasionally allies him with the high court's liberal members and against the interests of traditional conservative constituencies, including business. Scalia consistently has defended rights he believes are explicit in the Constitution, even when he finds them personally abhorrent. In 1989 he cast the deciding vote in a Supreme Court opinion that found flag-burning a form of speech protected under the First Amendment. And his reading of the Fourth Amendment's prohibition on unreasonable searches and seizures led him to break from the majority -- and ally himself with liberal Justice John Paul Stevens -- when it upheld a mandatory drug-testing program for U.S. Customs employees in 1989.

Even Presidents aren't immune from Scalia's strict reading of the Constitution. In Hamdi v. Rumsfeld, the court was asked to consider whether Bush had the power to hold a U.S. citizen seized in Afghanistan as an enemy combatant in detention at Guantanamo. Scalia again joined with Stevens to reject that Executive Branch grab for wartime power. And in State Farm Mutual Auto. Ins. Co. v. Campbell, Scalia broke with Corporate America in a dissent that found no constitutional protection against punitive damages. Scalia and jurists like him "won't be rubber-stamping the conservative or business agenda," says Kenneth W. Starr, a partner at law firm Kirkland & Ellis in Washington and former Whitewater special prosecutor during the Clinton Administration.

Liberals don't buy that, which is why the fireworks over the Supreme Court could dazzle Washington for months. Yet this is hardly the typical D.C. political drama -- because once the noise and sparks settle down, the question will remain: More than two centuries after the Constitution was first penned, just how far should the courts go in interpreting the Founding Fathers' words?